Refusing to marry someone because of their caste identity after promising to do so — and using that promise to convince them to enter into a sexual relationship — seems fairly unethical on the face of it; criminal even. And the Bombay High Court appears to agree.
The Aurangabad bench of the court recently refused to quash criminal proceedings against a man for doing precisely this. A case was filed against him under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 for caste-based atrocity, and the Indian Penal Code, 1860 for rape.
According to the factual matrix presented before the court, Ganesh Suryawanshi, the accused, had met the woman on Instagram, and despite her initial reluctance, persuaded her to meet him in person in December 2019. Subsequently, he also tried to convince her to enter into a sexual relationship with him, which she refused. But later, after he promised to marry her, she agreed based on the promise. However, in March 2020, he began avoiding her, and then told her he was unwilling to proceed with the relationship since she “belonged to a lower caste.” As the complainant noted though, she had made him aware of her caste-identity much before they had sex; he seemed unfazed by it then.
So, Justices Vishwas Jadhav and Sandipkumar More, who heard the case, deemed Suryawanshi’s promise to marry the woman, and then proceeding to engage in sexual intercourse with her, as a “false promise” — one that was never intended to be fulfilled.
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The judges referred to a precedent set by the Supreme Court, which had noted that not every sexual intercourse between a heterosexual couple, who intended to get married, can be retrospectively considered “rape” if the man cannot follow through on his commitment. For it to be deemed “rape,” it would have to fulfill certain criteria. First, the man must never have had any intent to follow through on his promise even when he made it. Second, the woman’s decision to enter into a sexual relationship with him must be based on that promise.
“Ganesh appears to be engaged in sexual relationship with the girl on the promise of marriage and she also on many occasions consented for the same due to that reason only… Therefore, the refusal from him for performance of marriage with her on the basis of they belong to different castes, prima facie appears a false promise… After such refusal, there was no physical relationship between him and the victim further,” the bench noted in the present case, adding that “whatever acts of sexual intercourse between Ganesh and the victim were because of a clear-cut false promise of marriage.”
The rationale goes to the heart of consensual sexual relationships — if consent is obtained based on a false promise, then it’s essentially non-consensual. To put it more clearly, the woman consented to have sex with him on the condition that he would marry her; she consented to have sex with the man she would get married to. Since he wasn’t that man, she had technically not consented to the intercourse. Moreover, he was aware he wasn’t going to marry her but chose to actively misrepresent his intentions.
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The idea behind outlining these criteria is to ensure people don’t get unfairly penalized if circumstances in their lives have changed — preventing them from fulfilling a promise they made in good faith. Instead, the intent of the law is to punish people who make “false promises” with the sole intent of establishing a sexual relationship.
To put it simply, “misguided consent” isn’t “free consent.” That’s precisely what the present judgment has reiterated.
Moreover, this case also lays bare a form of caste-based inhumanity — one where bodies of the same women, who are are considered “impure” for marriage, are used for sexual pleasure.
